22-3069 Thomas v. Aldi, Dougherty, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM- MARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FED- ERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 27th day of February, two thousand twenty-four. 4 5 Present: 6 DEBRA ANN LIVINGSTON, 7 Chief Judge, 8 STEVEN J. MENASHI, 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11 12 _____________________________________ 13 14 OMAR THOMAS, 15 16 Plaintiff-Appellant, 17 18 v. 22-3069 19 20 JHON ALDI, DOUGHERTY, CAPT., TAMMARO, LT., 21 BARBUTO, C/O, LAUGHMAN, C/O, HALL, C/O, 22 23 Defendants-Appellees. * 24 _____________________________________ 25 26 For Plaintiff-Appellant: AUSTIN BERESCIK-JOHNS, Law Office of Austin B. 27 Johns, LLC, Hartford, CT. 28 29

* The Clerk of Court is respectfully directed to amend the official caption as set forth above.

1 30 For Defendants-Appellees: THADIUS L. BOCHAIN, Assistant Attorney General for 31 William Tong, Connecticut Attorney General, Hartford, 32 CT. 33 34 Appeal from a judgment of the United States District Court for the District of Connecticut

35 (Bolden, J.).

36 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

37 DECREED that the judgment of the district court is AFFIRMED.

38 Plaintiff-Appellant Omar Thomas, a former pretrial detainee within the custody of the Con-

39 necticut Department of Correction (“DOC”), appeals from a judgment of the United States District

40 Court for the District of Connecticut, entered November 4, 2022, dismissing his civil rights claims

41 on summary judgment after determining that he did not exhaust administrative remedies as re-

42 quired under the Prison Litigation Reform Act (“PLRA”), see 42 U.S.C. § 1997e(a). Thomas

43 asserts that he exhausted available remedies by achieving the ends he sought or, in the alternative,

44 that he established a genuine issue of material fact as to whether DOC’s administrative procedures

45 were unavailable to him. We assume the parties’ familiarity with the underlying facts, the pro-

46 cedural history of the case, and the arguments presented on appeal, which we recount here only as

47 necessary to explain our decision to affirm.

48 * * *

49 “We review a district court’s decision to grant summary judgment de novo, resolving all

50 ambiguities and drawing all permissible factual inferences in favor of the party against whom

51 summary judgment is sought.” Burg v. Gosselin,

(2d Cir. 2010) (quoting Wright

52 v. Goord,

(2d Cir. 2009)). Summary judgment is appropriate when, viewing

53 the evidence in the light most favorable to the non-moving party, “there is no genuine dispute as

54 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

2 1 56(a). We also review de novo a district court’s judgment that a plaintiff failed to exhaust ad-

2 ministrative remedies under the PLRA. Williams v. Priatno,

(2d Cir.

3 2016).

4 Pursuant to the PLRA, “[n]o action shall be brought with respect to prison conditions under

5 section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or

6 other correctional facility until such administrative remedies as are available are exhausted.” 42

7 U.S.C.A. § 1997e(a). In other words, “an inmate is required to exhaust those, but only those,

8 grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained

9 of.’” Ross v. Blake,

(2016) (quoting Booth v. Churner,

, 738

10 (2001)). “[A]side from the ‘significant’ textual qualifier that ‘the remedies must indeed be

11 “available” to the prisoner,’ there are ‘no limits on an inmate’s obligation to exhaust . . . .’”

12 Hayes v. Dahlke,

(2d Cir. 2020) (quoting Williams,

) (internal

13 citation omitted). “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries

14 of proper exhaustion.” Jones v. Bock,

(2007).

15 As relevant to this appeal, DOC imposed two key requirements on detainees like Thomas

16 who sought administrative remedies. First, prisoners were required to attempt to resolve any

17 problems informally and to attach a form detailing such attempts to any subsequent, formal request

18 for remedies. Second, prisoners had to submit each request on a separate form.

19 Thomas formally sought administrative remedies on two occasions relevant to this appeal.

20 In March 2018, he filed a written request to be placed in protective custody due to conflicts with

21 other detainees at Corrigan Radgowski Correctional Center (“CRCC”), the facility where he was

22 incarcerated. Because he had orally requested protective custody, to no avail, on two prior occa-

23 sions, his March 2018 filing also requested “a civil action” against the staff for alleged deliberate

3 1 indifference to his safety. CRCC returned the filing without a disposition both because Thomas

2 failed to attach the required documentation of prior attempts to resolve the problem and because

3 the filing contained two distinct requests. Thomas then orally requested, and subsequently re-

4 ceived, recreation alone status, which provided him physical separation from all other prisoners

5 not on recreation alone status. According to Thomas, this separation, though technically distinct

6 from protective custody, was effectively the relief he sought when he filed the March 2018 griev-

7 ance.

8 Thomas again pursued administrative remedies in June 2018 after being transferred to

9 MacDougall Walker Correctional Institution (“MWCI”) and suffering an assault from another pris-

10 oner who entered his cell when an officer errantly opened the door. In his grievance, Thomas

11 specifically requested the incident report from the assault, the identity of the officer who opened

12 the door, and that the staff be more vigilant to prisoner safety. MCWI staff returned the grievance

13 without a disposition both because each grievable matter therein was not submitted separately and

14 because the incident report and name of the officer were available through a separate “FOI” pro-

15 cess. The returned form also requested more information to investigate the assault. Subse-

16 quently, the officer who opened the door took responsibility for his actions.

17 On appeal, Thomas first contends that, because he received favorable determinations—i.e.,

18 recreation alone status, the officer’s admission to opening his cell door—he effectively “ex-

19 hausted” the available remedies under Ortiz v. McBride,

(2d Cir. 2004) (declar-

20 ing that “inasmuch as [the plaintiff] obtained a favorable determination,” “no such further appeal

21 was required”), cert. denied,

(2005). But the district court rightly observed that

22 we have since “clarified” our judgment in Ortiz. Thomas v. Aldi, No. 3:18-CV-1350,

16716160, at *9 (D. Conn. Nov. 4, 2022). The proper standard “is not whether the prisoner has

4 1 a reason to pursue administrative remedies; it is whether such remedies are available to him.”

2 Ruggiero v. County of Orange,

(2d Cir. 2006).

3 In this case, as in Ruggiero, administrative remedies were available to Thomas. After

4 receiving the response to his March 2018 request, Thomas could have re-filed separate grievances

5 alleging deliberate indifference and requesting protective custody, notwithstanding DOC’s deci-

6 sion to grant him recreation alone status. Likewise, Thomas could have re-filed his June 2018

7 request or sought the incident report through the FOI process, notwithstanding the officer’s admis-

8 sion to having opened the door. Such actions “would have allowed prison officials to reconsider

9 their policies and discipline any officer who had failed to follow existing policies.”

.

10 “Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of

11 prisoner suits [by] afford[ing] corrections officials time and opportunity to address complaints

12 internally before allowing the initiation of a federal case.” Porter v. Nussle,

, 524–

13 25 (2002). Thomas’s recreation alone status, and the officer’s admission of responsibility, “while

14 arguably providing him with the relief he sought, did not provide him with all of the relief available

15 to him.” Ruggiero,

. Because the favorable outcomes “did not render all ad-

16 ministrative remedies unavailable,”

they do not demonstrate the required exhaustion.

17 Thomas argues in the alternative that administrative remedies were unavailable to him.

18 “An administrative procedure is ‘unavailable’ when (1) ‘it operates as a simple dead end – with

19 officers unable or consistently unwilling to provide any relief to aggrieved inmates;’ (2) the

20 scheme is ‘so opaque that it becomes, practically speaking, incapable of use,’ meaning that ‘some

21 mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it;’ or (3)

22 ‘when prison administrators thwart inmates from taking advantage of a grievance process through

5 1 machination, misrepresentation, or intimidation.’” Hayes,

(quoting Ross, 578

2 U.S. at 643–44).

3 Thomas’s arguments do not persuade us to disturb the district court’s judgment. First, as

4 to “dead end” unavailability, there is no evidence of Thomas re-filing his March 2018 request,

5 even after it was returned with instructions to attempt written informal resolution and include only

6 one request per filing. There is also no evidence that he tried to re-file his June 2018 requests,

7 notwithstanding DOC’s instructions to re-file each remedy request on a separate form and to pur-

8 sue the alternative FOI procedure as needed. Having failed to follow these directions, Thomas

9 cannot show that the DOC remedy procedures were a “dead end.”

10 We also disagree with Thomas’s opacity argument. As the district court observed, staff

11 at CRCC and MWCI returned his grievances with instructions to provide additional information

12 and to follow specified protocols. He did not comply. He also presents no argument that other

13 DOC inmates are unable to proceed through these grievance protocols. Thomas has therefore

14 failed to demonstrate that the remedy procedure was “prohibitively opaque[] such that no inmate

15 could actually make use of it.” Williams,

.

16 Finally, Thomas claims he was thwarted when officials gave him “the runaround” by,

17 among other things, returning his June 2018 grievance with a request for more information. Alt-

18 hough we share the district court’s concern that “it is not clear what, if any, additional information

19 Mr. Thomas could have provided that the DOC did not already know or have access to,” Thomas,

20

, at *11, the fact remains that Thomas neither provided more information nor

21 attempted to resubmit his grievance. “To constitute an ‘available’ remedy, a process requires

22 only ‘the possibility of some relief.’” Green Haven Prison Preparative Meeting of Religious

23 Soc’y of Friends v. N.Y. State Dep’t of Corr. & Cmty. Supervision,

(2d Cir. 2021)

6 1 (quoting Ross,

). Because Thomas did not pursue the possibility of relief that

2 DOC provided, the district court did not err in determining that he had failed to exhaust the avail-

3 able remedies.

4 * * *

5 We have considered Thomas’s remaining arguments and find them to be without merit.

6 Accordingly, we AFFIRM the judgment of the district court.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk of Court

7